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September 19, 2013


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I looked at some of the articles with curiosity. My overall impression is that they gave far too much credit to the Legal Service in the development of EU law and far too little to the Council and the various directorates (only the legal service could be expected to deploy terms like teleological by the way.)

If "legal history" is to be key to legal construction in the EU, a vital period is passing right now, in that many of the negotiators of the various iterations of the treaty (Coal & Steel Community -> Treaty of Rome -> Single European Act -> Maastricht Treaty -> Treaty of Amsterdam -> TFEU, plus all the protocols and side agreements) are retired, elderly, dying or already dead (a least one was blown up by the Red Brigade terrorists in Germany.) A tremendous amount of the negotiation was in person between senior diplomats rather than politicians, and a lot of the reasons why provisions were written as they now appear may be lost. There is a lot of juicy detail (for example, which diplomat announced to his astonished peers (and of which politician) "did you know, my foreign secretary is a prize shit!" and what was the topic that statement related to?)

So I do think this is a useful subject - it would could in a few decades avoid the ECJ engaging in the quasi-seances necessary in the US to divine original intent. I also think that it is an urgent one - time is running out to capture much of the history.

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